Wrongful Dismissal Lawyers
Disproving Resignation In Alberta

There are instances where the conduct of an employee may be called into question. In the fallout of such conduct, an employee may leave the company. The conditions in which the employee leaves can be a source of debate, questioning whether: the employee volunteered to resign, was coerced to resign, or was wrongfully dismissed from their position. The following case of wrongful dismissal explores this matter. If you feel there are comparisons to your employment experience, contact our employment lawyers in Edmonton and discuss your case with us. Call us today at 1-780-666-8161.

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Alberta Wrongful Dismissal vs. Resignation Case

Court of Queen’s Bench of Alberta

Citation: Robinson v. Team Cooperheat-MQS Canada Inc., 2008 ABQB 409

Date: 20080709
Docket: 0503 16967
Registry: Edmonton

Between:

Edward Harry Robinson, Plaintiff

– and -

Team Cooperheat-MQS Canada Inc., Defendant

_______________________________________________________

Reasons for Judgment
of the
Honourable Mr. Justice Donald Lee
_______________________________________________________

The Action

[1] The within action was brought by the Plaintiff, Edward Harry Robinson, against his former employer, the Defendant Team Cooperheat ‑ MQS Canada Inc. (“Cooperheat”). Mr. Robinson claims damages for wrongful dismissal in the range of 22 to 24 months flowing from the end of his lengthy employment with Cooperheat that was terminated in February 2005.

[2] Cooperheat defends on the basis that Mr. Robinson resigned his position with Cooperheat and therefore could not have been dismissed, wrongfully or otherwise, from his employment such that he would be entitled to damages.

[3] In the alternative, Cooperheat states that even if Mr. Robinson is entitled to wrongful dismissal damages, such damages should be reduced significantly given his failure to mitigate.

[4] Although the Defendant originally alleged just cause for termination as an alternate defence to the claim in its Statement of Defence, the Defendant abandoned this prior to the trial.

Background

[5] In February 2005, Mr. Robinson was Cooperheat’s branch manager based in Edmonton, Alberta. He had been in this position since 1997, after working as Cooperheat’s Ontario sale manager (reporting to Cooperheat’s Ontario based branch manager) since 1989. As Sales Manager, Mr. Robinson reported to Cooperheat’s Ontario branch manager, Bob Coutu.

[6] This was Mr. Robinson’s second posting with the Cooperheat (or its corporate predecessors) as he had previously worked for the company in various capacities from 1974 until 1986.

[7] As at February 1, 2005, Mr. Robinson’s compensation package including salary, bonus, benefit entitlements (including health and prescription medicine coverage and the use of company vehicle), and an annual 50% matching RRSP contribution by the company are valued at $140,473.25 per annum or $11,706.11 per month.

[8] In August 2004, Cooperheat had been acquired by Team Industrial Services (“TEAM”). As part of TEAM’s acquisition of Cooperheat the company was placing a greater focus on safety issues.

[9] In January 2005, Brenda Mackay, then Cooperheat’s safety manager complained to her supervisor, Mr. Gary Lee who was then based at Cooperheat’s head office in Texas, that Mr. Robinson had yelled at her and spoken to her rudely. The incident was sparked when Ms. MacKay assigned personnel to a particular task which Mr. Robinson felt should not have been done without his or the company operation’s manager’s approval. Although based in Edmonton, Ms. MacKay did not report to Mr. Robinson.

[10] In response to Ms. MacKay’s complaint, officials from the Texas head office arranged a meeting (the “Meeting”) for February 1, 2005, in Edmonton involving:–

(i) Mr. Robinson;
(ii) Ms. MacKay;
(iii) Mr. Lee;
(iv) Jim Campbell, Cooperheat’s Executive Vice President (International), Mr. Robinson’s direct supervisor; and
(v) Frank Kauffman, Cooperheat’s Human Resources Manager.

[11] Mr. Robinson was advised of the meeting approximately one week in advance during a telephone conversation with Mr. Campbell, and again the day prior to the Meeting during a face to face meeting with Mr. Campbell. Mr. Campbell advised Mr. Robinson that he did not consider the incident with Ms. MacKay to be a significant one. Mr. Campbell’s evidence is that Mr. Robinson insisted that if he did not receive an apology from those involved, he would quit. Mr. Robinson denies having said this.

[12] The Meeting began with a discussion concerning the implementation of new safety programs, and progressed to discussing Ms. MacKay’s complaint and concerns about the manner in which Mr. Robinson dealt with employees.

[13] During the course of that discussion two other employees, were referred to by Ms. MacKay. As a result Allan MacAulay and Andy McPherson were invited to join the meeting, and each gave their views on Mr. Robinson’s treatment of employees.

[14] At several points during the Meeting, Mr. Robinson made statements regarding resignation. He denies having resigned. Cooperheat states that Mr. Robinson did resign.

[15] The following morning, Mr. Robinson arrived at work, met with Mr. Campbell and requested that he be allowed to retract his resignation. The basis and exact statement made by Mr. Robinson is in dispute. What is not in dispute is that Mr. Campbell declined the request.

[16] In the ensuing days Mr. Campbell began mapping out a transition plan. Mr. Robinson continued to report for work.

[17] On February 4, 2005, Mr. Campbell prepared a memo which confirmed inter alia that Mr. Robinson had resigned and confirmed the conservation of February 2, 2005 in which Mr. Robinson asked to withdraw his resignation. The text of this memo reads as follows:–

To: Ed Robinson
From: James R. Campbell
CC: Shelby Morris
Date: February 4, 2005
Subject: Resignation of February 1, 2005

After much thought and deliberation I have come to the conclusion to accept and document your resignation as promulgated in a meeting held in your office on Tuesday, February 1, 2005. This decision is necessary to bring the issue to some degree of finality and allow all involved to make appropriate plans.

The meeting was attended by Frank Kauffman, Gary Lee, Brenda MacKay, James Campbell and you. Andy McPherson and Allan MacAulay joined the meeting towards the end. You will recall that on three (3) separate occasions during the meeting you verbally resigned your position in the presence of all attendees. You will also recall I did not immediately accept your resignation but rather advised you I needed to consider your resignation and the implications and potential options. You should further recall you closed the meeting by stating to Mr. Kauffman you were going to spend some time after the meeting considering your own options.

As I weighed the impact of your resignation after our meeting I was struck with normal concerns for transition, timing and succession planning. On Wednesday you assured me you would not abandon your position or the company; I trust you stand by that statement as we consider numerous transition issues and options.

This was a very difficult decision but I feel the underlying issues addressed in our meeting(s) will not be resolved by leaving the organization in its current structure. I stressed to you on Wednesday, February 2, 2005 that the organization would change in some manner; that comment was offered as a certainty, not simply a possibility. It was also discussed that we would look at options for you within the organization that would support the organization’s interests and hopefully align with your personal goals.

It is further noted that on Wednesday, February 2, 2005 you suggested your wish to retract your resignation of the previous day. I acknowledged this suggestion but did not accept your retraction and left it as an open item. I spoke with you by telephone on Friday, February 4, 2005 and in our conversation you stated you wished to stay with the company. I again did not accept the suggestion of retraction but left the issue open as we continued to consider options for the organization. You will recall during this conversation I advised you I had received a tender of resignation from Allan MacAulay the previous day. The reasons cited by Mr. MacAulay further underscore my concern over the current organization and give additional support to my decision to undertake organizational change.

This memo is intended to advise you of my decision and to bring to closure the issue of your resignation. Additionally, it is our intent to speak with you Monday afternoon, February 7, 2005, to discuss alternative positions for you should you decide to pursue opportunities with Team Cooperheat‑MQS Canada outside of the Edmonton branch. I will contact you by phone in the afternoon to discuss the options we have identified and to discuss our ideas and see if we have an acceptable option. If we have an option that is suitable and acceptable we will plan a transition accordingly. If we are unable to address your personal goals with the option(s) set forth we will proceed with transition planning related to the acceptance of your resignation as discussed in this memo.

[18] In the text of this memo Mr. Campbell states that Mr. Robinson’s resignation had been accepted.

[19] On February 9, 2005, Mr. Campbell, having then returned to Texas, prepared a further memo to Mr. Robinson, again advising Mr. Robinson that Cooperheat was accepting Mr. Robinson’s resignation and that Mr. Robinson’s last day would be February 25, 2005.

[20] On February 9, 200, Mr. Campbell prepared a memo to staff advising that Mr. Robinson had resigned and that, at least on an interim basis, Mr. Coutu would assume the newly created position of Regional Manager for Canada.

[21] Mr. Coutu arrived in Edmonton on February 9, 2005, On February 10, 2005, he discussed with Mr. Campbell whether it was appropriate to have Mr. Robinson continue to report to the office. The result of that discussion was that on February 11, 2005, Mr. Coutu advised Mr. Robinson that he should no longer report to work but would still be paid out through February 25, 2005.

[22] Mr. Robinson collected the majority of his personal effects, and did not return to the office after that except to collect some plants and other items which had been left behind.

[23] In addition to being paid through February 25, 2005, Mr. Robinson was allowed to assume lease and insurance payments on a company vehicle through to approximately the end of April, when the company’s lease expired.

[24] A record of employment (“ROE”) was issued on February 25, 2005. As the “reason for issuing ROE”, the ROE states “E ‑ Resigned”.

[25] Mr. Robinson remained in Alberta until the end of November 2005 at which time he and his wife moved to Ontario to be closer to family.

[26] In January 2006, Mr. Robinson began applying for work in Ontario. The sufficiency of those efforts is in dispute.

[27] It was not until late November 2006, that Mr. Robinson assumed new employment.

[28] In addition to giving evidence on his own behalf, the Plaintiff called four witnesses: his wife Jean Robinson; two former Cooperheat employees, Greg Humniski and Andy McPherson; and his family physician for the period 1999 ‑ 2005, Dr. Curt Vos.

[29] The Defendant called three witnesses: Jim Campbell, Frank Kauffman and Bob Coutu.

Issues

[30] This trial raises four central issues:–

A. Was Mr. Robinson’s employment terminated by the Defendant, or did Mr. Robinson resign?

B. If Mr. Robinson was terminated by the Defendant, what is the appropriate notice period, having regard to his age, length of service and seniority?

C. Did Mr. Robinson fail to mitigate his damages? and

D. Did the Defendant treat Mr. Robinson in a manner that warrants a finding of bad faith or “Wallace” damages?

[31] The Plaintiff argues that there is a continuous period of employment there from 1974, and that wrongful dismissal damages should be in the 24 month range and that the Plaintiff has fully mitigated his damages. The Plaintiff submits that there should be special damages awarded for:

(a) $500.00 for what are characterized as expenses applying for employment;

(b) $47,291.13 for costs incurred to move and on the sale and purchase of homes;

(c) $7,891.91 for out of pocket medical treatment and prescription medications for the period March 1, 2005 through February 28, 2007; and

(d) $118.00 per month for replacement Alberta Health and Alberta Blue Cross coverage through to March of 2006, when his Ontario coverage took effect.

[32] Finally the Plaintiff seeks Wallace damages for the employer’s acts of bad faith.

[33] The Defendant argues that the evidence demonstrates that Mr. Robinson clearly and unequivocally resigned his position on February 1, 2005. The onus is on the Plaintiff to show otherwise, and on the whole of the evidence, the Plaintiff has not done so.

[34] Even if there is some doubt as to the exact words used during the meeting, it is beyond doubt that any reasonable person observing the events of February 1, 2005 would have come to the conclusion Mr. Robinson had unequivocally resigned his position. Having done so unequivocally, it is submitted that there is no basis by which his purported retraction of the resignation the following morning can be effective.

[35] Moreover, it is submitted that even if it were open to Mr. Robinson to resile from the resignation, the evidence shows that the events of February 1, 2005 had placed the Defendant in a detrimental position and, accordingly, it was within the Defendant’s right to refuse to accept Mr. Robinson’s attempted withdrawal.

[36] In the event this Court finds the Plaintiff did not resign, or the company was legally bound to accept Mr. Robinson’s purported withdrawal of his resignation, the Defendant submits that the appropriate measure of damages or pay in lieu of reasonable notice is between 13 and 18 months. Further the Defendant submits that such award must be reduced by a minimum of 11 months to account for the complete failure of the Plaintiff to make any attempt to mitigate his damages, let alone to make reasonable attempted to do so.

[37] Finally the Defendant submits that there is no compelling basis by which the Plaintiff should be entitled to an extension of reasonable notice damages as set out in Wallace, because at all times the Defendant acted reasonably and fairly, and at no time did the Defendant act in a high handed, callous or malicious manner.

A. Termination or Resignation

1. The Law

[38] A plaintiff has the onus of establishing that he was terminated. Case law from Alberta and elsewhere in Canada indicates that the test is: “Given all of the circumstances, would a reasonable person have understood by the plaintiff’s statement that he had just resigned?”

[39] The test is an objective one: it does not matter what the employer actually understood, but rather what a reasonable employer would have understood in the circumstances: Pauloski v. Nascar, [2002] A.J. No. 256 (Q.B.); Pratt v. Arakis Energy Corp., [1999] A.J. No. 892 (Q.B.); Assouline v. Ogivar Inc., [1991] B.C.J. No. 3419 (S.C.).

[40] A resignation must be made in clear and unambiguous terms in order to be effective and binding on the employee. A resignation must be clear and unequivocal to be effective. The test for determining whether an employee has resigned their position is an objective one, meaning the court must be satisfied given all the surrounding circumstances, that a reasonable person would understand by the plaintiffs actions, that they had resigned: Lelievre v. Commerce and Industry Insurance Co. of Canada, [2007] B.CJ. No. 366 at para. 5.

[41] In my view, it is necessary to establish an agreement to terminate an employment relationship in clear terms. The most that can be said of the actions and words of the plaintiff in the summer months of 1988 is that they were expressions of dissatisfaction and of an intention to look for an alternate position. There was no agreement that the contract would end on a stipulated date. I find the plaintiff was dismissed and because there was not cause for the dismissal, he is entitled to damages in lieu of notice: Windmeyer v. Municipal Enterprises Ltd., [1991] N.S.J. No. 186 (S.C.T.D.) at 8.

[42] A resignation must be clear and unequivocal. To be clear and unequivocal, the resignation must objectively reflect an intention to resign, or conduct evidencing such an intention: Kiernan v. Ingram Micro Inc., [2004] O.J. No. 3118 (C.A.) at para. 27.

2. The Evidence

[43] The evidence about the actual words used by Mr. Robinson includes:–

(a) Robinson testified that he said something like “if the allegations are not withdrawn, I shall be forced to resign” (Evidence of Robinson);

(b) Mr. Campbell testified that Mr. Robinson “resigned”, but did not recall him specifically saying the words “I resign”. When taken to Mr. Kauffman’s memo (Tab 22), he generally agreed with Mr. Kauffman’s account of the words used (Examination‑in‑ Chief of Campbell);

(c) Mr. Kauffman’s evidence is based on his notes, which were made in mid‑February, 2005. The notes in his daytimer, which were made the day after the meeting, were discarded in January of 2007. His memo, which he confirms was made to record as accurately as possible the contents of the meeting (Tab 22), states:–

i. “he felt the best course of action would be for him to resign”;
ii. “he had made up his mind to resign”;
iii. “someone else will be appreciating you because I’m going to resign”.

(d) Mr. Kauffman does not recall Mr. Robinson saying the words “I resign” to Mr. Campbell nor at all (Cross‑examination of Kauffman);

(e) Mr. MacPherson, who joined the meeting, does not recall hearing Mr. Robinson say anything about resigning;

(f) Bob Coutu was told what happened during the meeting, but was not told specific words used by Mr. Robinson (Read ins of Coutu, page 42, line 24 to page 44, line 14).

[44] The Court must determine what Mr. Robinson said during the meeting. All of the participants in the meeting who testified acknowledged that they do not recall Mr. Robinson saying “I resign”. Rather, the words used by Mr. Kauffman indicate that Mr. Robinson was speaking of a potential act of resignation in the future.

[45] The Court is required to determine whether a reasonable employer, having regard to all of the circumstances, would understand that Mr. Robinson resigned. Here, even before one examines the nature of the meeting and Mr. Robinson’s reaction to it, the statements made do not reach that threshold.

[46] It is noteworthy that the Human Resources Manager for the Defendant testified that he did not understand that Mr. Robinson resigned during the meeting, but that he was going to resign at some point in the future (Cross‑examination of Kauffman). Mr. Kauffman has been a human resources professional for twenty‑eight years. His understanding is instructive in determining what a reasonable employer would understand in the circumstances.

[47] It is important to note that the meeting on February 1, 2005 is the only time when Mr. Robinson is alleged to have resigned. There is no other alleged act of resignation between the end of the February 1, 2005 meeting and the meeting between Mr. Robinson and Mr. Campbell on February 2, 2005. Mr. Robinson did not express an intention to resign to anyone other than the participants at the meeting (Read in of Coutu, page 42, line 6 to line 23).

[48] Given this evidence, whatever Mr. Robinson said, it was not “clear and unequivocal”. It was, in Mr. Robinson’s evidence, conditional upon the allegations not being withdrawn. At examination for discovery, Mr. Robinson said that he recalls saying that he was being left with no alternative but to resign (Read Ins of Robinson). In Mr. Kauffman’s evidence, it was a decision to do something in the future, which the evidence shows was never actually done.

3. Circumstances Surrounding the Alleged Resignation

[49] The circumstances surrounding the alleged resignation must be considered in determining whether a reasonable person would conclude that a plaintiff intended to resign. Emotional or angry outbursts are not a reasonable basis for an employer coming to that conclusion.

[50] Whether words or action equate to resignation must be determined contextually. The surrounding circumstances are relevant to determine whether a reasonable person, viewing the matter objectively, would have understood [the plaintiff] to have unequivocally resigned: Kiernan, supra at para. 30

[51] It put the plaintiff into a state of anger: and while in that state he said things which, he says, should not now be construed as having any weight in what had the appearance, on the surface, of being his actual resignation of his position. … Was this [accepting the resignation tendered in those circumstances] the action of a reasonable board of directors? It would, I believe, have been wiser for them to have waited until tempers had cooled and then have heard what the plaintiff had to say. The board, in my view, acted rather hastily in the circumstances. I am satisfied, and find, that the plaintiff’s apparent resignation was made in “a spontaneous outburst of anger”, to use the phrase employed by Davidson J. in Widemeyer v. Municipal Enterprises Ltd. reflex, (1991), 36 C.C.E.L. 237:

Cox v. Victoria Plywood Co‑Operatives Assoc., [1993] B.C.J. No. 2788 at paras. 5, 16‑17.

[52] It is not necessary for me to make a finding as to whether Mr. Windmeyer used the words “I quit” in one of the meetings. If he did, it was a spontaneous outburst in anger and hardly sufficient evidence to terminate an eleven year employment relationship when viewed with the balance of the evidence: Windmeyer, supra at 7.

[53] The law is clear that where an emotionally upset and angry employee exclaims “I quit”, the issue of whether he/she has resigned is not clear cut. The law recognizes that such utterances may not constitute a valid resignation. Nor should such a declaration be accepted without question by the employer. Rather the onus is on the employer to not accept such a spontaneous declaration without proper deliberation . . . Lelievre, supra at para. 52.

[54] The evidence adduced in this case indicates that Mr. Robinson was put into a meeting to investigate a complaint of harassment, and that he reacted emotionally (Cross‑examination) of Kauffman; Examination‑in‑Chief of MacPherson; Examination‑in‑Chief of Robinson; Tab 22).

[55] The Defendant submits that this was not a “formal” investigation, the evidence having indicated that Mr. Robinson thought that the issue between him and Brenda MacKay had been resolved (Examination in‑Chief of Robinson; cross‑examinations of Kauffman and Campbell). However the attendance of three senior officers was “highly unusual” (Read in of Coutu, page 30, line 14 to page 31, line 5, 15 to 17). Mr. Kauffman also told Mr. Robinson during the meeting that the “company takes these matters seriously” (Cross‑examination of Kauffman; Tab 22). This was also somewhat inconsistent with what Mr. Campbell had told to Mr. Robinson on January 31, 2005 that he thought it was a minor incident that could be handled locally (Examination in‑Chief of Campbell).

[56] The physical set‑up of the meeting could also be relevant given that Mr. MacPherson testified that although Mr. Robinson’s office is “a good size”, it was crowded due to the furniture and the number of people in the office. Mr. MacPherson stated that Mr. Robinson was sitting behind his desk, with the other individuals surrounding him (Cross‑examination of MacPherson).

[57] Mr. Robinson testified that he accepted that he had shouted at Ms. MacKay, and apologized for it, and that evidence is confirmed by Mr. Campbell.

[58] Mr. Kauffman confirms in his evidence that Mr. Robinson said that he thought the matter had been resolved. After Mr. Kauffman then tells Mr. Robinson that the matter is “taken seriously” by the company, the evidence indicates that Mr. Robinson said that he felt he was being slandered (Examination‑in‑Chief of Kauffman Tab 22). Further, only two weeks after the February 1, 2005 meeting, Mr. Kauffman writes that Mr. Robinson became “agitated”; that he was “emotional”; and later, that he became “agitated” again (Tab 22). Mr. Kauffman confirmed that Mr. Robinson was “very defensive” and “defiant”, and he could tell that the meeting was “upsetting to him” (Evidence‑in‑Chief and Cross‑examination of Kauffman Tab 22).

[59] Although Mr. Robinson knew that the meeting was being called to discuss a specific incident with Ms. MacKay, none of the participants who testified were aware that two of Mr. Robinson’s employees would be called in join their complaints to Ms. MacKay’s complaints (Read in of Coutu, page 25, lines 8‑21; page 34, line 27 to page 36, line 7).

[60] Further, the evidence indicates that Ms. MacKay said during the meeting that Mr. Robinson’s inappropriate behaviour had happened more than once (Cross‑examination of Kauffman), there was no indication that additional complaints would surface during the meeting. This was a surprise to Mr. Robinson and Mr. Kauffman (Examination‑in‑Chief of Robinson; Cross‑examination of Kauffman).

[61] This was the first time in Mr. Robinson’s long service at Cooperheat that he had been given this sort of criticism (Examination‑in‑Chief of Robinson; Cross‑examination of Campbell). The evidence of Frank Kauffman was that be was shocked at how the meeting progressed, and that Mr. Robinson looked shocked as well (Cross‑examination of Frank Kauffman). This is not surprising given that these allegations were being raised for the first time in front of senior company officials, including Mr. Robinson’s direct supervisor and the Human Resources Manager.

[62] Andy MacPherson testified that Mr. Robinson looked “not in control” when he walked into the meeting, and looked “betrayed” after Andy and Allan had criticized Mr. Robinson as a manager. Mr. MacPherson said that it felt like a “lynch mob”, and he is sorry that he ever participated in the meeting (Examination‑in‑Chief of MacPherson).

[63] Mr. Campbell testified that Mr. MacPherson said that, at times, Mr. Robinson could be “mean” and “a bully”. Mr. Campbell testified that Mr. Robinson was “surprised” and “annoyed”. Finally, Mr. Campbell testified that he told Mr. Robinson to “go home and relax” (Examination‑in‑Chief and Cross‑ examination of Campbell).

[64] The evidence is clear that Mr. Robinson had no input into choosing February 25, 2005 as his final day of employment. This is inconsistent with a resignation. Mr. Campbell testified that he chose that date, and that he communicated it to Mr. Robinson in a Memo sent by email (Cross‑examination of Campbell). Mr. Robinson testified that he was not asked about the date, and was surprised to see it. Mr. Coutu confirmed that there were no other documents or conversations about the choosing of February 25, 2005, other than the memo (Read in of Coutu, page 48, line 25 to page 49, line 5).

[65] Mr. Campbell’s Memo dated February 4, 2005 confirms the lack of clarity surrounding was Mr. Robinson said in the meeting of February 1, 2005 although Mr. Campbell testified that Mr. Robinson had resigned his “position as Branch Manager”, the memo does not mention anything about Mr. Robinson raising the “resignation” issue at the meeting on January 31, 2005. This omission is consistent with Mr. Robinson’s testimony that he never mentioned resignation at that meeting (Cross‑examinations of Kauffman and Robinson). Mr. Campbell agreed that Mr. Robinson closing the meeting by saying that he would “consider his own options” was inconsistent with Mr. Robinson having made a decision (Cross‑examination of Campbell).

[66] Mr. Campbell’s evidence, on the whole, indicates that it was he who decided that Mr. Robinson could no longer carry‑out his duties as Branch Manager because of what happened during the meeting in front of his employees (Examination‑in‑Chief and Cross‑examination of Campbell).

[67] The Defendant had heard that Mr. Robinson expressed interest in working past the age of 65 as recently as December of 2004 (Read in of Coutu at page 86). Given the Plaintiff’s long standing service and age, a reasonable employer would not have concluded that he quit his job.

[68] The evidence indicates that whatever Mr. Robinson said during the meeting on February 1, 2005, it was not “clear and unequivocal”.

4. Retraction /Lack of Reliance

[69] In any event even where an employee does resign, he is free to retract that resignation unless the employer has acted to its detriment in relying on it.

[70] Even if the trial judge had been correct in finding a resignation at law, it is clear, as counsel agreed, that an employee may resile from a resignation, provided the employer has not relied upon it to its detriment: Kiernarn, supra at para. 34.

[71] Unless the employer acted to its detriment on the expressing of intention to resign, the plaintiff remained free to change his mind: Tolinan v. Gearmatic, [1986] B.C.J. No. 481 (C.A.) at para. 14.

[72] Mr. Robinson spoke with Mr. Campbell on February 2, 2005, in order to clarify that he had not intended to resign (Examination‑in‑Chief of Robinson). That Mr. Robinson purported to retract his “resignation” on February 2, 2005 is confirmed by Mr. Campbell and Mr. Coutu (Cross‑examination of Campbell; Read in of Coutu, page 93, line 25 to page 95, line 4).

[73] The Defendant did not purport to accept Mr. Robinson’s resignation until February 4, 2005, in a memo from Jim Campbell to Mr. Robinson. There was no earlier purported “acceptance” either in writing or verbally (Cross‑examination of Campbell; Exhibit 8; Read in of Coutu, page 46, line 4 to page 47, line 5).

[74] The Defendant did nothing to rely on Mr. Robinson’s alleged resignation before it was retracted on February 2, 2005 (Cross‑examination of Campbell; Read ins of Bob Coutu, page 21, line 4 to page 22, line 2). Mr. Campbell called Mr. Coutu on February 2 or 3, but did not tell him to come to Edmonton until around February 8, 2005. Cooperheat took no steps to “reorganize” until after Mr. Robinson had retracted his alleged resignation (Read in of Coutu, page 96, line 21 to page 97, line 16).

[75] The evidence demonstrates that no reasonable person could have concluded that Mr. Robinson intended to resign. The actual content of the meeting was a surprise for Mr. Robinson, with his employees invited into a meeting to table—for the first time in his 30 years of employment with the Defendant—allegations that he was a bad manager.

[76] Further, the evidence indicates that he did not resign in clear language, but rather expressed an intention to do something in the future. The Defendant’s HR manager did not understand that Mr. Robinson had resigned in the meeting. In any event, Mr. Robinson expressed his wish to retract his resignation (if there had been one) the next day, and before the Defendant took any steps to rely upon it.

[77] I conclude that Mr. Robinson did not resign, and he was therefore wrongfully terminated by the Defendant.

B. Reasonable Notice

1. The Law

[78] The Plaintiff submits that a 22 to 24 month notice period is appropriate, and the Defendant submits that a 13 to 18 month notice period is called for.

[79] The reasonable notice period is calculated having regard to the plaintiffs particular circumstances:–

There could not be a catalogue laid down as to what was reasonable notice in particular cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

Bardal v. Globe & Mail Ltd., [1960] O.J. No. 149 (H.C.)

[80] The Plaintiff cites four cases in support of the 22 to 24 month notice period.

[81] In Chorny v. Freightliner of Canada Ltd., [1995] B.C.J. No. 51 (S.C.) at para. 14, the plaintiff was 56, was the regional manager of Western Canada, and bad worked for the company for a total of approximately 26 years. The Court awarded 24 months damages, having specific regard to the plaintiffs age and lack of formal education. The facts in this case are remarkably similar, although Mr. Robinson was 62, and had worked for the Defendant for a total of 29 years.

[82] In Mitchell v. Westburne Supply Alberta, [2000] A.J. No. 246 (Q.B.), the Court awarded 24 months notice to a 57‑year‑old employee with 28 years of service. At the time of his termination, he was a purchasing manager, reporting directly to a corporate vice president. The Court awarded an addition three months for Wallace damages.

[83] In Gaunt v. Consolidated Freightways Corp. of Delaware, [1990] M.J. No. 582, the Manitoba Court of Queen’s Bench awarded 24 months notice to a 61‑year‑old employee with 20 years service. The plaintiff was a manager of the employer’s Winnipeg office, and reported to a division manager in the United States. The Court found that given his age and skills, the prospect of finding comparable employment was “not encouraging”.

[84] In Ellison v. Burnaby Hospital Society, [1992] B.C.J. No. 858, the British Columbia Supreme Court awarded a 59‑year‑old manager of nursing with 25 years of service a total of 22 months notice. The Plaintiff was a manager reporting directly to a vice president. The Court considered her age, limited education and limited reasonable similar jobs in arriving at the total notice period.

[85] The Defendant provides the Court with a wrongful dismissal database based on the following parameters:

Jurisdictions: All Canada
Occupation Class(es): Middle Management
Employee Age (or age not given): 55 – 67
Years of service: 12 to 20

[86] The report indicates an average notice period of 12.70 months. Only one decision in this search range suggested a notice of period of more than 20 months and in that case, there was an additional 4 month notice extension for bad conduct by the employer.

2. The Evidence

[88] Mr. Robinson was 62 at the time he was terminated. Mr. Robinson’s age tends to increase the reasonable notice period. The parties agree that he was earning $140,473.25 per year.

[89] He had worked for the Defendant for 29 out of the past 31 years; over half of his working life was spent with the Defendant. His most recent continuous length of service was 17 years.

[90] In Chorny v. Freightliner of Canada Ltd., the Court looked to objective factors to determine whether or not a break in service, working for a competitor, should be disregarded in determining the proper notice period. There the Court examined memoranda indicating that the employer recognized the previous service for the purpose of pension entitlements, and service recognition. The Court concluded that both parties saw the plaintiff as a long time employee, and ignored the break in service.

[91] Mr. Campbell testified that Mr. Robinson was a “long‑service employee”. He testified that the reference letter prepared for Mr. Robinson contemplated over “twenty‑seven” years with the company, and that he intended the reference letter to cover that time period (Cross‑examination of Campbell).

[92] Plaintiff’s counsel submits that Mr. Robinson’s break in continuous service was short, and that for the purposes of calculating his reasonable notice, this short break in the context of 31 years ought not to be taken into account. It is clear that Robinson worked for an unrelated company during that time, as did the plaintiff in Chorny, however the Plaintiff argues that it is also clear that Mr. Robinson was treated as a long‑term employee, and Mr. Campbell’s reference letter indicates that he did not see the short break in service as an impediment to providing a reference for the full years of employment.

[93] Courts have the discretion to disregard interruptions in service in determining the notice period, and will examine the break in context of the full period of employment. In D’Orofio v. Dowell Schlumberger Canada Inc., [1988] A.J. No. 1342 at para. 14 the Court states:–

I am also inclined to the view of Mr. Justice Hoyt in Gordon v. St. John’s Shipbuilding and Dry Dock (1983), 47 N.B.R. (2d) 150 … that the interruption of service is not a matter of substantial importance. He was considering 9 or 39 years’ service. In this case, it is 6 or 15. In any event, the plaintiff had permanent employment of a substantial period. He had worked for a total of 15 years for the defendant. He was one of the most senior employees in Grande Prairie. He was treated by the employer as having 15 years’ service in all areas but pension credits, which appears to have possibly been outside the employer’s control, as in Moore v. Zurich.

See also Krewenchuk v. Lewis Construction Ltd., [1985] B.C.J. No. 1553 (S.C.)

[94] Mr. Robinson was a senior employee, responsible for the Defendant operations in British Columbia, Alberta, Saskatchewan, Manitoba, and the Territories. He reported directly to the Vice President International (Examination‑in‑Chief of Robinson). He had a number of employees reporting to him, fluctuating between 17 and 75 (Read In of Coutu, page 12, line 24 to page 13, line 2).

[95] Mr. Robinson worked his way up in the company from working on the tools, which was the nature of his original trade, to sales and management. He has no university degree nor college certificate in management. At 62, he could not work on the tools anymore, and his job prospects were limited to sales or management (Re‑direct of Robinson).

[96] As noted in Chorny, supra, the plaintiff was the regional manager of Western Canada. At the time, he was 56 years old. In assessing the reasonable notice period, the Court states at para. 30 – 31:–

[T]he Plaintiffs unique position is that he has risen to this high corporate position without formal training. At age 56, without a certification, it seems unlikely he will ever find an equivalent position in competition with a younger but experienced person with say an M.B.A. The economic factor in the sense of a depressed economy, is not argued. The economic factor that arises here is because people of his position in the corporate world have degrees, formal training, perhaps wider experience due to education.

Conclusion – Notice Period and Special Damages

[97] Mr. Robinson worked for two other companies between 1986, when he left Cooperheat, until 1989 when he returned to the company. Mr. Robinson’s resume confirms that from 1986 to 1988 he worked for Maritime Stress Contracting in Dartmouth, Nova Scotia and from 1988 until 1989 with Bell Camp Fabrication in Ingersoll, Ontario. Neither of these entities had any relationship to Cooperheat.

[98] A nearly three year break in service is sufficiently long that Mr. Robinson’s past service should not be recognized in determining his length of service: Foster v. Knill, [1990] B.C.J. No 1165 (B.C.S.C.); Hall v. Giant Yellowknife Mines Ltd., [1992] N.W.T.J. No. 167, 44 C.C.E.L. 101 (N.W.T.S.C.); Matheson v. Canadian Freightways Ltd., 2003 BCSC 1728 (CanLII), [2003] B.C.J. Bno. 2624, 2003 BCSC 1728 (B.C.S.C.).

[99] Here the record of employment confirms Mr. Robinson’s start date to have been April 4, 1989, a period of 15 years, and 11 months from his last day paid of February 25, 2005. For the purposes of determining his length of service in these circumstances I conclude that 16 years is the appropriate term.

[100] I conclude that all of these factors place Mr. Robinson’s reasonable notice period at 18 months or approximately $211,000 having regard to Mr. Robinson’s personal circumstances, and similar case law.

[101] In addition to damages for pay in lieu of notice the Plaintiff seeks special damages for out‑of‑pocket expenses. The amounts claimed are:

(a) $500.00 for what are characterized as expenses applying for employment;

(b) $47,291.13 for costs incurred to move and on the sale and purchase of homes;

(c) $7,891.91 for out of pocket medical treatment and prescription medications for the period March 1, 2005 through February 28, 2007; and

(d) $118.00 per month for replacement Alberta Health and Alberta Blue Cross coverage through to March of 2006, when his Ontario coverage took effect.

[102] There was little actual evidence adduced to support the $500.00 expense claim. Nor have any supporting documents been produced to support the amounts claimed. The Plaintiff’s statement and self‑prepared spreadsheet, absent supporting receipts and sufficient explanation is insufficient to prove damages. A Plaintiff seeking recovery for expenses must prove both the fact of the damages, and the amounts. While the amount claimed of $500 is very reasonable in the circumstances, it is not relevant or compensable in the absence of evidence.

[103] The claimed moving and home sale and purchase expenses are distinct from the matters at issue in this trial. Ms. Robinson’s evidence was that she and Mr. Robinson intended to move back to Ontario on his eventual retirement in any event. This was confirmed by Mr. Campbell during cross‑examination. Under cross‑examination, Mr. Robinson confirmed the move from Alberta to Ontario was done for purely personal reasons. Special damages may only be sought where there is a causal nexus between the basis of the claim (here, wrongful dismissal), and the damages sought. No such nexus is present in this case as unless the relocation costs are related to mitigation efforts, they are not recoverable: Porta v. Weyerhaeuser Canada Ltd., 2001 BCSC 1480 (CanLII), [2001] B.C.J. No. 2180, 2001 BCSC 1480 (B.C.S.C.) at paras. 153 – 165.

[104] This is especially the case where the Plaintiff intended to move anyways eventually. Ms. Robinson’s evidence was that it was always her and Mr. Robinson’s intention to move to Ontario eventually: Belliveau v. Westfair Foods Ltd., [1996] S.J. No. 837, 151 Sask. R. 49 (Sask. Q.B.), at para. 41.

[105] Further the Plaintiff overstates the value of claim by approximately $7,000 having failed to account for the G.S.T. Housing credit rebate, which he assigned to his builder and which reduced the cost of the home.

[106] The claim for out of pocket medical expenses amounts to double recovery. The annual compensation amount agreed to by the parties ‑ $140,473.35 includes the value of Mr. Robinson’s benefits package.

[107] Mr. Robinson’s evidence under cross‑examination was that he elected not to convert the group benefit coverage into personal coverage. No evidence was adduced to show what the additional cost of converting the group coverage to personal coverage nor that there would be any additional cost. Having elected not to replace his company‑provided benefits coverage, Mr. Robinson’s loss is limited to the value of benefit provided by the company. This amount is already included in the agreed compensation figure: Kokonis v. Shaw Pipe Industries Ltd., [1983] CarswellAlta 712, [1983] A.W.L.D. at para. 13.

[108] Similarly, the Alberta Health insurance amounts are not recoverable. This coverage was part of the incidents and benefits of employment which are encompassed in Mr. Robinson’s compensation package. This amount has been agreed to, and to award special damages, over and above the compensation amount would amount to double recovery.

The Plaintiff’s Argument on Mitigation

[109] The Plaintiff argues that there was no evidence on which one could conclude that there had been any significant failure to mitigate. Still less was there any evidence that more efforts or different efforts would have found the plaintiff a suitable job any sooner, or would have been even likely to do so: Christianson v. North Hill News Inc., [1993] A.J. No. 672 (C.A.) at para. 19.

[110] The Plaintiff submits that there is no evidence that Plaintiff missed any employment opportunities as a result of an extended holiday. The Plaintiff argues that it is not necessarily a failure to mitigate where a finding could be made that a plaintiff has not immediately commenced a job search.

[111] The Plaintiff argues that there is insufficient or no evidence to conclude that he did not make reasonable efforts to mitigate his damages, and even if I could find that he failed to mitigate his damages, there can be no reduction in the award of damages where the Defendants have not proven that the Plaintiff would otherwise have found appropriate work: Smith v. Aker Kvaerner Canada Inc., [2005] B.C.3, No. 150 (S.C.) at paras. 35‑36.

[112] The Plaintiff submits that proving a failure to take reasonable steps to mitigate is not sufficient as there must also be direct evidence, or evidence sufficient to support an inference, that the omission of the plaintiff was causative. The evidence must prove that the plaintiff failed to take reasonable steps to mitigate the loss and that had such steps been taken they would have reduced the loss. The breach of the plaintiffs duty to mitigate will only be relevant if the breach is proved to be causative.

[113] For example in Rowe v. General Electric Canada Inc., [1994] 0.3. No. 3137 (Gen. Div.) at paras. 14‑15 the Court determined that although the plaintiff did not take all reasonable steps to seek alternate employment in that he should have taken advantage of the counselling and other services offered free by his employer and should have actively made enquiries instead of simply responding to advertisements, the evidence did not establish that had he done so the loss would have been less. The efforts he did make show that he would have difficulty being hired even for the positions for which he was well qualified.

[114] The Plaintiff argues that similarly in Petersen v. Labatt Breweries of B.C., [1996] B.C.J. No. 2470 (S.C.) at paras. 10‑11 the evidence here does not discharge that onus. The list of prospective employers in Petersen did not establish there were any suitable positions available. The advertisements put to the plaintiff on cross‑examination as possible jobs he might have applied for were for the most part not equivalent in status, qualifications, experience or location. The lack of response from employers the plaintiff did contact and the experience of the similarly‑qualified Mr. Morris, did not lead the Court to conclude there was a low probability that men of their age, experience and qualifications could likely have found equivalent to that they left, even with vigorous attempts to seek such work. The Court in Petersen found that the defendant had not proved that the plaintiff could have found suitable work by trying harder..

Mitigation – Conclusion

[115] The efforts made by Mr. Robinson should not be scrutinized with the benefit of hindsight. Further Mr. Robinson’s duty is to search for comparable employment, and taking a position which would be equivalent to a demotion is not required:–

Bearing in mind the fact that wrongful dismissal suits are suits for breach of contract, assessing their damages follows familiar principles. One of the most familiar is the defence that the plaintiff failed to mitigate his or her damages, and that was pleaded and argued here. The most important and undoubted qualification on that defence is this. The efforts of the plaintiff will not be nicely weighed, particularly with hindsight. All that the plaintiff need do is to make what at the time is an objectively reasonable decision; he or she need not make the best possible decision. In particular, the courts will not usually expect one faced with a breach of contract to take steps which are risky or unsavory. The onus of proof is on the defendant (says Michaels v. Red Deer College 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324) and so any gap in the evidence accrues to the plaintiffs benefit. In wrongful dismissal cases, the courts have extended that qualification a little further: the plaintiff need not mitigate damages by talcing a significant demotion, or by going back to the employer who fired him or her. All that is trite law: Christianson, supra at para. 11.

[116] The onus is on the employer to show that a plaintiff has failed to mitigate his damages.

In [Red Deer College v. Michaels et at (1975), 57 D.L.R. (3) 386 (S.C.C.)], the Court confirmed that the burden lies on the defendant to show on a balance of probabilities that the plaintiff failed in his or her duty of mitigation. At the same time, the Court adopted the following passage from Cheshire & Fifoot, Law of Conflict, 8th ed. (1972):

But the burden which lies on the defendant of proving that the plaintiff has failed in his duty of mitigation is by no means a light one, for this is a case where a party already in breach of contract demands positive action from one who is often innocent of blame (at p. 599).

Ata v. Carter Pontiac Buick Ltd., [2002] B.C.J. No. 730 (S.C.) at para. 37

[117] Employees are entitled to a certain recuperation period after being wrongfully terminated. The length of that period depends on the particular circumstances of the terminated employee, including the emotional effect of the termination on the employee.

[118] Any employee should be given a reasonable period of time to get over the shock of having their employment terminated, to organize their thoughts as to how best to go about obtaining new employment, and to undertake the necessary research and preparation of resumes so that they are in a position to compete for available positions.

[119] It is reasonable to assume that the day after an employee has gone through the trauma of being fired that he or she must immediately seek alternate employment to avoid the criticism that they are not mitigating their damages. It is appropriate for a reasonable period of adjustment and recovery to be available to an employee whose employment has been terminated: Ata v. Carter Pontiac Buick Ltd., supra at para. 46.

[120] A terminated employee has the right to some “recovery time” due to the emotional impact of losing one’s job. [The Plaintiff] should not be expected to immediately begin a search for a new job. The case law generally allows a two to three month period before a job search has to begin in earnest, depending of course, upon what the evidence is as to emotional impact the loss of the job had on the particular employee: Chand v. Craftsman Collision Ltd., [2007] B.C.J. No. 115 (Prov. Ct.) at para. 4.

[121] In Charlesworth v. Morris Hospital District No. 25, [1982] M.J. No. 327 (Q.B.) at para. 33 the Plaintiff did not gain any new employment until a year after the dismissal. In part this was due to her physical and mental condition arising from the trauma of the manner of her firing, and in part it was due to being unable to find suitable employment. Either reason in Charlesworth justified the finding that she was entitled to full recovery indicated.

[122] The burden on an employer is a two‑part burden. First the employer must prove that the employee failed to take reasonable steps in his particular circumstances to find reasonably alternate employment. Second, the employer must show that if the employee had taken those steps, he would have probably found employment.

[123] I conclude however that the Plaintiffs lack of effort coupled with the Defendant’s evidence demonstrating a vibrant labour market is sufficient to meet the burden upon the Defendant employer: Bauer v. Seaspan International Inc., 2005 FCA 292 (CanLII), [2005] F.C.J. No. 1531, 2005 FCA 292 (F.C.A.), at paras. 12 and 13.

[124] The Defendant has an onus to prove there was specific suitable employment available to Mr. Robinson had he looked. However the test is not whether there was a particular job open for Mr. Robinson, but whether the Plaintiff acted reasonably in seeking alternative employment, and whether had he attempted, it is probable he would have secured employment.

[125] Mr. Robinson testified that he began his search for new work in an expected manner for someone of his age and length of service: he called his contacts and former clients to ask if there were any opportunities (Examination‑in‑Chief of Robinson).

[126] Mr. Robinson testified that the last time he had written a resume was in 1974 (Examination‑in‑ Chief of Robinson). He was 62 years old, which is itself a limiting factor in the likelihood of finding new work, and the Supreme Court of Canada has taken judicial notice of that fact. See Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497 at para. 101, cited in Radwan v. Arteif Furniture Manufacturers, [2002] A.J. No. 1031 (Q.B.) at para. 81.

[127] Mr. and Mrs. Robinson testified about the impact of the loss of his job on him. Mr. Robinson said that he felt depressed, humiliated and that his “credibility had been ruined” (Examination‑in‑Chief and Cross‑examination of Robinson). Mrs. Robinson said that he was “withdrawn”, depressed, had problems sleeping, and that it lasted for seven or eight months (Examination‑in‑Chief of Mrs. Robinson).

[128] The evidence of Dr. Vos was that there was a major change in Mr. Robinson after he lost his job, and that his observations of him was that he was depressed. Dr. Vos stated that Mr. Robinson historically handled stress very well, but that it changed after February of 2005. Dr. Vos testified that Mr. Robinson got worse over the next few months. The only other record of depression in Mr. Robinson’s file was from 2002, and related to a specific situation with Mrs. Robinson’ chronic illness (Examination‑in‑Chief of Vos).

[129] Finally allegations of just cause were raised against Mr. Robinson in September of 2005. The allegations were serious (Cross‑examination of Campbell, , Read In of Coutu, page 99, lines 3‑8).

[130] The Robinsons relocated to Alberta for the purpose of Mr. Robinson taking the Regional Manager position. Mr. Campbell understood that Mr. Robinson had family ties in Ontario, and that he had expressed some interest in returning to Ontario (Cross‑examination of Campbell). Mr. Robinson testified that they had more support in Ontario (Examination‑in‑Chief of Robinson).

[131] The Robinsons arrived in Ontario in early December, 2005. The evidence indicates that Mr. Robinson was calling his contacts in Ontario in search of employment in December (Tab 19, Document 1; and Examination‑in‑Chief of Robinson). Mr. Robinson sent out resumes to several companies based on his review of advertisements placed in newspapers. He was given a number of interviews, but only received one job offer in his region, which he took in November of 2006. The evidence indicates that Mr. Robinson also utilized online resources to find employment (Examination‑in‑Chief of Robinson).

[132] The evidence however also is that Mr. Robinson took few steps from early February 2005 until January of 2006, notwithstanding that he worked in an industry that was expanding and growing, and notwithstanding that he had marketable and in‑demand skills.

[133] The evidence of Mr. Campbell and Mr. Coutu was that the industry was going through an “unprecedented boom” in the words of Mr. Campbell. This was largely the result of the on‑going rapid expansion of oil sands activity in Northern Alberta. Alberta’s economy was thriving and vibrant.

[134] Mr. Coutu’s evidence was that after being installed as Regional Manager (Canada) he had to transfer from Ontario to Edmonton because this is where the activity was and he needed to be on the ground. Further, Mr. Robinson’s own evidence was that one of the responses he received to his eventual job search in Ontario was from a company (Aggreko) seeking to take advantage of the growth in Alberta by opening a branch in Alberta.

[135] Notwithstanding this, Mr. Robinson took few real steps to find work. In August 2005 he and Ms. Robinson determined that they would leave the thriving Alberta job market and would return to Ontario for family reasons. Even then Mr. Robinson took no steps to find work in advance of his arrival in Ontario. The computer searches that were eventually carried in January 2006 could just as easily have been done from Alberta prior to the move.

[136] Even once he began a search in Ontario in January 2006, the effort was sporadic.

[137] Mr. Robinson replied by internet to ads he saw in the newspaper or found posted on job‑bulletin board type websites. No concerted effort was directed at finding work. Notwithstanding the substantial volume of paper compiled and produced by the Plaintiff as a record of his job search, the fact is only Mr. Robinson’s own summary of applications made between January 2006 and August 2006 shows only 18 actual positions applied for and a further 11 times his resume was posted to web‑based employment bulletin boards. A rate of only 18 applications over an 8 month period is insufficient.

[138] Moreover notwithstanding that he had a very positive letter of reference from Cooperheat, Mr. Robinson confirmed under cross‑examination that he did not include the reference letter when submitting his resume in response to internet posting. Had he done so, it is arguable that his response rate may have been higher.

[139] The Plaintiff did not make inquiries with past employers or several companies engaged in work very much in line with the Plaintiffs experience. For instance, Mr. Robinson spent 4 years as a site superintendent for Cooperheat at the Bruce Nuclear Generating Station in Ontario.

[140] Mr. Robinson had previous dealings with Babcock & Wilcox significant enough that the involvement is mentioned in his resume. Yet even though Mr. Robinson knows Babcock & Wilcox is on the verge of securing a contract to do a significant nuclear plant rebuild, he does not contact Babcock & Wilcox to enquire whether a position might be available. Moreover he cannot even think of reason to justify his failure to do so.

[141] Similarly Mr. Robinson’s read‑in evidence and his evidence under cross‑examination confirms a failure to contact several large industry and heat treating related entities near his current home, either because he “doesn’t like their style” or because he “never gave them a thought”.

[142] I conclude after balancing all of these factors given the evidence before me, Mr. Robinson’s 18 month wrongful dismissal damages award must be reduced by 6 months due to some failure on his part to mitigate.

D. Bad Faith Damages

1. Law

[143] Mr. Robinson claims that the Defendant acted in bad faith towards him, and treated him in a callous and high‑handed manner in the manner of his dismissal, and throughout the litigation. Such treatment of a long‑service employee attracts additional damages. David Harris, in Wrongful Dismissal, states, after reviewing cases on Wallace damages:–

The common thread running through these cases, it is suggested, is this: Each of the forms of shabby mistreatment of employees which constitute bad faith conduct effectively sets at nought the “employee dignity” that an individual employee has in a sense “earned” by faithfully serving the employer’s interests during the term of employment. The point is not simply that the employer treats the employee shabbily and without dignity but that it knows, or should be taken to know, that the employee deserves to be treated much better than this, as a result of witnessing, and benefiting from, the employee’s best efforts on its behalf over the years. . . .

D. Harris, Wrongful Dismissal, v. 2 at 4‑240.3 3 (emphasis in original)

[144] The Supreme Court in Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC), [1997] 3 S.C.R. 701 at paras. 103, 107, explains the rationale for bad faith damages in the employment context:–

[W]here an employee can establish that an employer engaged in bad faith conduct or unfair dealing in the course of dismissal, injuries such as humiliation, embarrassment and damage to one’s sense of self‑worth and self‑esteem might all be worthy of compensation depending upon the circumstances of the case. In these situations, compensation does not flow from the fact of dismissal itself, but rather from the manner in which the dismissal was effected by the employer.

. . .

The law should be mindful of the acute vulnerability of terminated employees and ensure their protection by encouraging proper conduct and preventing all injurious losses which might flow from acts of bad faith or unfair dealing on dismissal, both tangible and intangible. I note that there may be those who would say that this approach imposes an onerous obligation on employers. I would respond simply by saying that I fail to see how it can be onerous to treat people fairly, reasonably, and decently at a time of trauma and despair. In my view, the reasonable person would expect such treatment. So should the law.

[145] Where an employer alleges just cause without having undertaking a satisfactory investigation, additional damages may be awarded for bad faith.

[146] Wallace damages are not limited to the acts of the employer that took place at the very moment of termination but may involve pre and post‑termination circumstances so long as they form a “component” of the manner of dismissal: Ball, Canadian Employment Law at 22‑40.

[147] The inclusion of unsubstantiated allegations of cause has extended notice periods for bad faith dealing.

The corporation acted in bad faith by alleging that Mr. Hampton had been dismissed for just cause and putting in specific allegations in its Statement of Defence which were unsubstantiated and in fact, were untrue. The corporation was under an obligation at all times from the moment it decided to dismiss Mr. Hampton to act in good faith and I am satisfied that it did not.

Hampton v. Thirty‑Five Charlotte Ltd., [1999] N.B.J. No. 423 (Q.B.) at para. 52

[148] The manner in which the termination is carried out can warrant damages for bad faith. Where the employee is mislead, or where the act of termination is carried out in a humiliating and insensitive manner, bad faith damages can be awarded.

[149] In his opening brief, the Plaintiff set out six grounds as a basis for this allegation, including inter alia: –

(a) It was unreasonable for Cooperheat to take the position that Mr. Robinson had resigned on February 1, 2005.

(b) The Defendant offered the prospect of a transfer then “took the offer away.”

(c) The Defendant arbitrarily determined February 25, 2005 as Mr. Robinson’s last day and told him to leave the office.

(d) The Defendant failed to properly investigate an allegation that Mr. Robinson had assisted or promoted union activities contrary to Cooperheat’s interest.

(e) The Defendant alleged cause for termination arising from Mr. Robinson’s conduct and management style.

It was unreasonable for Cooperheat to take the position that Mr. Robinson had resigned on February 1, 2005

[150] The Ontario Court of Appeal in a recent decision wrote as follows:–

It cannot mean that because the City terminated Ms. 7s employment for cause but abandoned cause as a defence during the course of litigation, its initial act of alleging cause for dismissal for dismissal was not warranted. The mere fact that cause is alleged but not ultimately proven, does not automatically mean that Wallace damages are awarded. So long as an employer has a reasonable basis on which to believe it can dismiss an employee for cause, the employer has the right to take that position without fear that failure to succeed on the point will automatically expose it to a finding of bad faith.

[Emphasis added]

Malvihill v. Ottawa (City), 2008 ONCA 201 (CanLII), [2008] O.J. No. 1070, 2008 ONCA 201 (Ont. C.A.), at para. 49.

[151] This question of whether Mr. Robinson resigned is the very matter at issue in this trial. It is clearly an arguable and triable issue. Although I rejected the argument that Mr. Robinson resigned, on the evidence there was a reasonable basis for Cooperheat to argue he did. Nor can it be said the fact of no resignation was so plain and obvious that Cooperheat acted unreasonably in asserting same. No evidence exists to suggest the accusation was invented, staged or advanced maliciously or spuriously.

[152] To accept the Plaintiffs submission that the mere fact of asserting a resignation where the Court does not find one to exist, has the necessary consequence that a finding of bad faith necessarily follows every wrongful dismissal judgment in favour of a Plaintiff.

[153] In the Porta v. Weyerhaeuser Canada Ltd., [1996] B.C.J. No. 2180 at para. 145, the B.C. Supreme Court refused to apply Wallace damages even though it found the Defendant’s allegation of just cause termination for theft was not made out and the investigation underlying the allegation was less than thorough.

While in the case at bar, Weyerhaeuser did make allegations of dishonesty to support its contention that it had just cause to dismiss Porta, and I have found that there was insufficient evidence to support those allegations, this is not in and of itself enough to support the claim for Wallace damages. In Havens v. John Watson Ltd. [1999] B.C.J. No. 1201 (S.C.), the court dismissed a claim for Wallace damages despite the fact that the employer failed to prove its allegations of theft, misappropriation and incompetence. In doing so, the court stated that Wallace does not require that any unsuccessful allegation of theft as just cause for dismissal result in an extended notice period. In that case, the court found that, while there was not enough evidence to substantiate the allegations, there were some objectively justifiable grounds for the belief of the employer that the plaintiff had committed the alleged acts.

[Emphasis added]

The Defendant offered the prospect of a transfer then “took the offer away.”

[154] The evidence of all the participants was that no actual position was ever offered to Mr. Robinson. All discussions were general in nature, and Mr. Robinson’s evidence confirmed this.

[155] Moreover the question was moot since, as Mr. Campbell testified, Mr. Robinson had stated he would not agree to any position that reported to Mr. Coutu. There was no possible position which Mr. Robinson could have taken in Ontario that did not report to Mr. Coutu either before or after Cooperheat’s reorganization. Even if a firm position had been offered, there can be no finding of bad faith based on the withdrawal of the “offer” in the face of the Plaintiffs stated refusal to accept such a position. In contrast, Mr. Coutu’s evidence was that he would not have an issue with Mr. Robinson returning to Ontario.

The Defendant arbitrarily determined February 25, 2005 as Mr. Robinson’s last day and told him to leave the office

[156] There is no basis to find bad faith on these facts. As Mr. Coutu testified, he meet with Mr. Robinson early in the day to avoid staff being present. At that time, Mr. Robinson was given the choice of collecting his personal belongings immediately, or at some other time outside of normal office hours. It was Mr. Robinson who made the choice to collect his belongings at that time. Mr. Coutu’s evidence also confirmed that Mr. Robinson took the time to say goodbye to employees on his departure.

[157] Further, Mr. Campbell’s evidence confirms that there were only 6 employees regularly at the Edmonton office during this period. Three of them: Mr. Robinson, Ms. MacKay and Mr. MacAulay were well aware of the events of the previous week as they were present in the Meeting. The manner in which Mr. Robinson was asked to cease attending at the Edmonton office was not abnormally or excessively humiliating or insensitive .

[158] As for the arbitrary determination of the final date, given the company’s position that Mr. Robinson had unequivocally resigned, it was within the company’s rights to arbitrarily chose an end date. There is no evidence to suggest Mr. Robinson protested this date, and there is no evidence to suggest he asked for a different date.

[159] Mr. Campbell’s evidence was that he had felt Mr. Robinson would assist in an orderly transition, and he felt about two weeks was appropriate.

The Defendant failed to properly investigate an allegation that Mr. Robinson had assisted or promoted union activities contrary to Cooperheat’s interest

[160] The Plaintiff included in its read‑in evidence a lengthy transcript extract page 59, line 1 through page 62, line 27] from Mr. Coutu’s discovery in which Mr. Coutu explains how a credible source, Mr. Althouse, who, inter alia, served as a senior official of the Nondestructive Testing Management Association, advised Cooperheat that Mr. Robinson was believed to have been assisting in organizing Cooperheat. As Mr. Coutu confirmed in the transcript evidence, which has been adopted by the Plaintiff as part of its case, Mr. Coutu had good reason to believe in the veracity of the report at the time it was made. At Page 61, lines 13‑16, Mr Coutu stated:–

It was not a rumour, okay. We do not act on rumours. We acted on the word of a person that I have known for a long time who has a lot of credibility. He had made a mistake.

Examination for Discovery of Bob Coutu, Page 61, lines 13‑16, Plaintiffs Read‑Ins.

[161] I conclude that Cooperheat took reasonable and diligent steps to investigate the accuracy of the report. The situation at the time, made it very difficult for Cooperheat to address the report with Mr. Yearly immediately:–

[...] Then‑‑and we had a ‑ ‑ we did not have a good relationship with Lance Yearly, and it took us a while to establish a nonconfrontational relationship with Lance because it was about an eight‑month process from the certification through to when we negotiated an agreement. And when you’re negotiating, there’s a lot of conflicts. Anyway, when we got through that, there was an where we’re talking with Lance and he was interested in levering offer [sic] some of the company’s training issues, and during that meeting, I had my first opportunity to open that conversation and query him directly on it. And he said, no, no, it was not Ed Robinson. And the minute I found that out I instructed our ‑ ‑ I told our attorneys that, you know, without a shadow of a doubt. That’s the story.

Examination for Discovery of Bob Coutu, Page 60, lines 22 ‑ Page 61, line 10, Plaintiff’s Read‑Ins.

[162] Cooperheat became aware of the allegation in the fall of 2005.

Examination for Discovery of Bob Coutu, Page 59, lines 15 ‑ 16, Plaintiffs Read‑Ins.

[163] As confirmed by the passage above, it took several months before Cooperheat could make more in‑depth inquiries. The Statement of Claim was filed on October 5, 2005 while the Statement of Defence was filed on October 24, 2005. Given the time frame available and the circumstances as they then existed, it was simply not possible for Cooperheat to verify the allegation prior to filing a defence. At the time, it was reasonable for Cooperheat to include the allegation in its defence.

[164] From the evidence, Cooperheat as a company would consider the allegations, if true, to be a serious breach of Mr. Robinson’s employment contract. Based on the available credible information available to Cooperheat at the time of filing the Defence, it was reasonable to have included the allegation as an alternate defence.

[165] As soon as Cooperheat became aware the allegation was not correct, it abandoned this aspect of its defence as confirmed in Mr. Coutu’s examination: Examination for Discovery of Bob Coutu, Page 59, lines 2 ‑ 4 Plaintiffs Read‑Ins.

[166] I conclude that Cooperheat was not acting out of maliciousness. It was not inventing allegations.

[167] Moreover although the evidence of Mr. Campbell and Mr. Coutu confirmed that Cooperheat would have viewed the allegation as a serious matter, the evidence also confirmed that the majority of Cooperheat’s competitors in the Alberta marketplace were already unionized, and that there were legitimate business reasons why a company might want to be unionized. For example, Mr. Campbell confirmed that certain customers required its contractors to be unionized and, further, that companies that were unionized would have a larger labour market available to them, Indeed, Mr. Coutu’s evidence was that after it was unionized in the fall of 2005, Cooperheat’s revenue increased dramatically.

[168] I conclude that the evidence on balance does not support the claim the Mr. Robinson that he would have suffered harm had the pleading become generally known, and in any event there is nothing in the evidence to suggest anyone outside Cooperheat knew of the allegation.

[169] As the Ontario Court of Appeal in Mulvihill stated at para. 55:–

The fact that in the present case the City abandoned the just cause defence at the outset of trial cannot be taken as evidence of bad faith or unfair dealing at the time of dismissal. There are numerous reasons why an employer might resile from the position that dismissal was for cause, including a willingness to compromise and to resolve disputes without the necessity of a trial. Employers must be free to abandon a position based on cause without fear that abandonment will automatically lead to liability for Wallace damages.

[170] Further the Defendant had an objectively justifiable ground to advance the assertion as discussed in Porta, supra. Moreover, the allegation was abandoned as soon as became clear the information received by Cooperheat was incorrect.

[171] Finally, Mr. Robinson’s own evidence is that he is not aware of a single instance where someone from outside Cooperheat had any details about the complaints against him.

Examination of Edward Robinson, Page 95, lines 11 -14, Defendant’s Read-In Evidence.

The Defendant alleged cause for termination arising from Mr. Robinson’s conduct and management style

[172] As for the allegations of cause related to Mr. Robinson’s conduct, the evidence adduced during the within proceedings confirmed there was a reasonable basis, an objectively justifiable basis as discussed in Porta, supra, for Cooperheat to advance that alternative defence inter alia:–

(a) Mr. Robinson conceded on the stand that his conversation with Ms. MacKay, which was the original catalyst for the events that followed, was inappropriate, to the extent that he felt it necessary to apologize;

(b) Mr. Robinson conceded under cross‑examination that during course of the Meeting, Mr. MacAulay made a statement to the effect of 90% of the time Mr. Robinson was a good manager but that 10% of the time he was questionable;

(c) The Plaintiff’s Read‑In Evidence includes confirmation that Mr. Coutu was told by Mr. Humniski that Mr. Humniski left the company because of Mr. Robinson’s behaviour;

Examination for Discovery of Bob Coutu, Page 106, line 22 ‑ Page 108, line 18, Plaintiffs Read‑Ins.

(d) The Plaintiff’s Read‑In evidence included confirmation that Mr. Coutu was told by others that they left the company because of Mr. Robinson’s behaviour; and

Examination for Discovery of Bob Coutu, Page 79, lines 8 ‑ 16 and Page 102, line 9 ‑ Page 106, line 15, Plaintiffs Read‑Ins.

(e) The Plaintiff’s Read‑In evidence includes confirmation that the purpose of the Meeting was to address a complaint about “verbal harassment in the workplace”.

Examination for Discovery of Bob Coutu, Page 104, lines 23 ‑ 27, Plaintiff’s Read‑Ins.

[173] Under cross‑examination, and in discovery, Mr. Robinson conceded that he is not aware of a single instance where Cooperheat discussed his situation with anyone outside the company.

Examination of Edward Robinson, Page 95, lines 11 — 14, Defendant’s Read‑ In Evidence.

[174] There was no evidence to show anyone beyond the parties had seen the pleadings. There is no evidence to suggest any of the allegations in the pleadings impacted Mr. Robinson’s ability to seek and secure employment. Nor is there any evidence that Cooperheat interfered in any way with Mr. Robinson’s ability to find employment or restricted him from seeking employment.

[175] Pleadings alone cannot found the bad faith claim asserted by Mr. Robinson. Pleadings are privileged and cannot form the basis of an independent action except where malicious and clearly false accusations are advanced in an effort to play “hardball” with the Plaintiff.

It is important here to distinguish between the employer’s right to vigorously defend its case for cause and a situation where the employer advances spurious allegations of wrongful acts or incompetence, in an attempt to put pressure on the employee, referred to in Wallace as “playing hardball.”

Silvester v. Lloyd’s Register of North America Inc., 2004 NSCA 17 (CanLII), [2004] N.S.J. No. 37, 2004 NSCA 17 (N.S.C.A.), at para. 24.

[176] There is no evidence the allegations here were advanced as a means of “playing hardball”. Moreover, Mr. Robinson has not adduced any evidence that he has suffered damage or harm.

Bad Faith Claim – Conclusion

[177] There is nothing in the Defendant’s conduct here that shows any highhandedness or callous disregard for the Plaintiff.

[178] I conclude that there is insufficient evidence to support a claim of bad faith dismissal on the part of the Defendant.

[179] Although not Cooperheat’s normal practice, Mr. Robinson was allowed to retain his company car following his last day. As Mr. Campbell testified, this was done as consideration after he learned that Mr. Robinson would not have any other vehicle.

[180] At the conclusion of his employment, Mr. Robinson was provided with a positive letter of reference from Mr. Campbell.

[181] Mr. Robinson’s pay was continued through February 25, 2005 even though he ceased to provide services was February 11, 2005.

[182] The guiding test for whether a claim of bad faith dismissal is made out is as set out by my colleague Justice Phillips in Turner v. Westburne Electic Inc., [2004] A.J. No. 927 at para 61:–

It is common for plaintiffs to seek an extension of the notice period on the basis of Wallace. It is worth noting, however, that the termination of employment will often result in loss of self‑esteem or embarrassment. What Wallace is intended to address is conduct on the part of the employer that is fundamentally dishonest and exposes the employee to additional harm.

[Emphasis added]

[183] I conclude that there was nothing fundamentally dishonest about Cooperheat’s conduct in this matter nor is there any evidence that Mr. Robinson was exposed to additional harm. Nor does the Defendant’s conduct meet the required standard of outrageous, malicious, high‑handed or callous disregard.

Disposition

[184] The Plaintiff was wrongfully, dismissed, and should be awarded 18 months damages, or approximately $211,000 based on the agreed annual amount of $140,473.25. His failure to mitigate reduces these damages by 6 months to 12 months damages or $140,473.25. The Plaintiff’s claim for special damages, as well as for bad faith damages are both dismissed.

Heard on the 23rd, 24th, 25th, and 27th days of June, 2008.
Dated at the City of Edmonton, Alberta this 9th day of July, 2008.

Donald Lee
J.C.Q.B.A.

Appearances:

Matthew A. Woodley
Reynolds, Mirth, Richards & Farmer LLP
for the Plaintiff

Kenneth P. Reh
Davis LLP
for the Defendant

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Posted on May 15th, 2013